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The Tax Lawyer

Tax Scholars and the Courts: Applying the APA to Tax Since Mayo

Stephanie Hunter McMahon

Abstract

Since the 2011 decision in Mayo Foundation for Medical Education & Research v. United States that the Supreme Court will not carve out an exception from the Administrative Procedure Act for tax, judges and scholars have debated the application of administrative law to the field of tax. However, these two groups often only incompletely engage with each other. Even within the academic discussion, articles do not always fully engage in a true discussion of ideas. These articles do show that academics are firmly entrenched on each side of this tax exceptionalism debate, about whether tax is or should be permitted special exceptions to generally applicable procedural rules. A review of cases decided since Mayo shows that it is inaccurate to say that there has been an end to tax exceptionalism, but it is true that there is debate over its acceptance in many different issues related to taxation. In some areas, tax exceptionalism is truly dead; in others it remains well-entrenched. This article lays out the existing debate among judges and academics and then struggles to find common ground.